Sporting Shooters Association of Australia (NSW) Sydney Branch Inc v Commissioner of Police, NSW Police Force

[2012] NSWADT 249

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Sporting Shooters Association of Australia (NSW) Sydney Branch Inc v Commissioner of Police, NSW Police Force [2012] NSWADT 249
Hearing dates:	23 November 2012
Decision date:	29 November 2012
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The application to stay the decision of the Commissioner of Police is refused.
Catchwords:	MERITS REVIEW - application for stay of decision to restrict ammunition used in rifles on firing range - Association losing money - public safety issues - stay refused
Legislation Cited:	Firearms Act Administrative Decisions Tribunal Act 1997
Cases Cited:	Williamson v Director General, Department of Transport [2000] NSWADT 165
Category:	Interlocutory applications
Parties:	Sporting Shooters Association of Australia (NSW) Sydney Branch Inc Commissioner of Police, NSW Police Force
Representation:	Counsel K Dailly (Applicant) J Harris (Respondent) Mainstone Lawyers (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	123297

REASONS FOR DECISION

Introduction

1. The Sydney Branch of the Sporting Shooters Association of Australia operates a 200 meter outdoor shooting range in Silverdale. Citing safety reasons, the Commissioner of Police further restricted the type of ammunition that could be used in centrefire rifles. The Association applied to the Tribunal for an urgent decision to allow the previous, less restrictive, condition to continue until the Tribunal reviews the decision. I have decided not to grant a stay of the Commissioner's decision because, despite the fact that the Association is losing money, there is a risk to public safety unless the condition remains in force.

1. The test for granting a "stay" is two fold. First, the stay must be necessary to "secure the effectiveness" of the hearing. That includes avoiding any irreparable harm or damage that is likely to occur prior to a hearing. Secondly, the Tribunal may only stay the decision if it is desirable to do so taking into account the interests of any person who may be affected and the public interest: Administrative Decisions Tribunal Act 1997, s 60.

The decision

1. The firearms approved for use on the range include centrefire rifles of a calibre up to 11.5 mm. That condition of approval has not changed. What has changed is the kinds of ammunition which cannot be used in those rifles. Previously the excluded ammunition had been described as .50BMG, .338 Lapua Magnum and .416 Barrett. The exclusion of the .50BMG is meaningless because it is a greater calibre than the 11.5 mm limit. Under the new condition, as well as excluding .338 Lapua Magnum and .416 Barrett, the Commissioner added a general exclusion for "high velocity, high capacity sniper derived rounds and their wildcats". The new condition, issued by the Commissioner on 25 July 2012, was expressed as follows:

Centrefire Rifle of a calibre up to 11.5mm (excludes high velocity, high capacity sniper derived rounds and their wildcats eg .338 Lap Mag 7 .416 Barrett)

1. The Commissioner relaxed various other conditions relating to rifles and pistols but it is the generic exclusion of the high velocity, high capacity sniper derived rounds and their wildcats to which the Association objects.

1. The reason for the exclusion is to ensure that those rounds, which have superior ballistics and an extreme range, do not leave the Range and cause damage to people or property.

1. The parties accept that the Commissioner may approve a shooting range subject to such conditions as he or she thinks fit: Firearms Regulation, cl 87. While there is no guidance in the Firearms Act 1996 as to the basis for imposing conditions, the principles and objects of that Act include "the overriding need to ensure public safety".

Irreparable damage?

1. The first step in determining whether to grant a stay is to ask whether a stay is appropriate to "secure the effectiveness" of the final determination of the application. Securing the effectiveness of the determination includes ensuring that the Association does not suffer financial loss for which it will not be compensated even if the Tribunal ultimately sets aside the Commissioner's decision: Williamson v Director General, Department of Transport [2000] NSWADT 165 at [17].

1. Ms Pamela Reeves is the Secretary of the Sydney Branch of the Association. She gave evidence that there has been a decline of 20.41% in attendances at the Silverdale range between September 2011 and September 2012 and a decline in attendance of 23.6% between October 2011 and October 2012. As a result of the fall in attendances, the Range Manager has told her that the Association's income has dropped by about $2000 a week. The Range Manager has also told her that the cost of running the range now exceeds the income from range fees for the first time in many years. Ms Reeves did not provide any documentation in support of that figure, nor did she provide details of the Association's income or assets. While I make no finding as to the precise extent of the Association's loss, I am satisfied that attendance has declined by approximately 20% and that there has been a corresponding loss of income.

1. I am satisfied that the declining attendance and subsequent loss of income is due, at least in part, to the imposition of the more onerous condition. The hearing is on 18 February 2013, which is just over 12 weeks away. It is likely that attendances will continue to be less than for the corresponding months a year ago. One of the grounds for the stay application was that, "Should such losses continue, the Association's Range may cease to exist." There was no evidence to support that assertion and it should not have been made. Ms Reeves explicitly denied that there was a risk that the Range would go out of business.

1. I am still satisfied that the loss of income means that a stay is appropriate to "secure the effectiveness" of the hearing. Without a stay, the Association will suffer financial loss for which it will not be compensated even if the Tribunal ultimately sets aside the Commissioner's decision.

Consideration of the interests of those affected and public safety

1. The second part of the test for the granting of a stay requires the Tribunal to consider the interests of the Association and its members together with any risk to public safety.

1. The Association's main interest is financial. Ms Reeves also mentioned some incidents she had been told of where employees had been abused or harassed by members who could no longer use the range. There has been no written complaint. The fact that staff have been harassed or abused by frustrated members is a management issue for the Association and I take no account of it for the purpose of determining whether a stay should be granted.

1. The Association also has an interest in being able to understand and apply the conditions on its approval. Ms Reeves expressed the view that the exclusion for "high velocity, high capacity sniper derived rounds and their wildcats" is open to interpretation. The Association has been guided by Mr Jenkins, a Range Inspector with the Firearms Registry of the NSW Police. He wrote to the Association on 31 March 2010 saying that, in general, the aim was to discourage the use of any firearm that displayed energies higher than a 7.62 mm NATO round at 200 meters. Following a request to clarify the condition on the Approval, Mr Jenkins re-iterated that:

The general rule passed onto Range Management and implied on the Range Approval is that no cartridge/round be discharged on the range that exceeds the ballistics of a 7.62 mm round at the 200 meter mark.

Mr Jenkins declined to "dictate what rounds can be discharged on the range." He added that, "If range management do not have the expertise to make that judgement then they must consult someone that does." Robert Carnell, the President of the Sydney Branch of the Association, gave evidence that it was possible, though impractical, to calculate the energy levels of particular rounds. To make that calculation every bullet must be weighed and a chronograph used to measure its speed. The Association has erred on the side of caution in deciding to exclude certain kinds of ammunition rather than calculating energy levels.

1. Members of the Association who are unable to use the Silverdale range have been inconvenienced. There was conflicting evidence as to whether there are other ranges in the Sydney area which they could use. Even if there are, am satisfied that members have been inconvenienced by the imposition of the new condition.

1. Mr Jenkins provided written evidence as to the public safety risks. He explained that the Firearms Act has been amended to allow recreational hunters to 'sight in' on licensed ranges. Previously, only target shooters could use the range. "Sight in" is a term used to describe the process of adjusting the sights on a rifle so that they are pointed to the place that the bullet strikes. My understanding is that hunters need to "sight in" before engaging in recreational hunting in the field. With the advent of recreational hunters using hunting calibres that are not normally used by target shooters, Mr Jenkins said stricter conditions became necessary.

1. In support of his view that any rounds that exceed the energy of 7.62 mm NATO Round at the 200 meter mark should be excluded, Mr Jenkins said that higher energy rounds have the potential to escape from the range onto adjoining roadways and properties. He explained the basis for this opinion in his statement:

The Silverdale Range is designated a "Limited Danger Area Range". The Firearms Registry Range Users Guide describes the method for constructing an ammunition danger area template. This template predicts the area of danger for a given type of ammunition. The standard template used is designed with reference to a 7.62 mm NATO round. If that template was applied to the Silverdale range, it would go well beyond the limits of the land owned by the range. . . . [I]t would in fact overshadow a small portion of a main arterial road, namely Silverdale Road that is 2200 meters from the firing line. The nearest occupied residence that would be overshadowed is approximately 750 meters from the firing line.

1. Ms Reeves disagreed with this opinion saying that there is a sandstone cliff behind the range, which prevents projectiles escaping from that end of the range, and the Association also uses an eyebrow baffle that prevents the barrel being raised high enough to shoot into the air. She added that the Silverdale range has been operating continuously since the late 1970s without any adverse incident in relation to public safety. The Commissioner acknowledged the Association's good safety record at the Silverdale range.

1. Mr Jenkins' evidence in relation to the risk of projectiles escaping from the range was plausible. He was not available for cross-examination but the Association allowed his statement to be admitted into evidence. The Association did not contest his assertion that it was possible for the excluded ammunition to escape from the range and cause injury to a person or property. While that risk is reduced by the topography and other measures such as baffles, I am not satisfied that the risk has been effectively challenged or reduced to make it desirable to grant a stay.

Order

The application to stay the decision of the Commissioner of Police is refused.

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Decision last updated: 29 November 2012